Partly allowed

M.S.R.T.C.Nanded. v. Venkatesh Ganpatrao Hingole.

Bombay HC26 Apr 2011WP/3828/1996

Case brief

AI extract

What is this about?

The High Court quashed the Industrial Court order which deemed reinstatement punishment disproportionate. However, since the deceased had worked and earned salary after interim order rejection, the Court protected those earnings while rejecting the underlying unfair labour practice complaint.

What did the court decide?

Industrial Court order dated 4th June 1996 and Labour Court judgment dated 25th July 1995 quashed; ULP complaint rejected; work done and salary earned by deceased between 1996 and 1998 protected from

M.S.R.T.C.Nanded. Vs Venkatesh Ganpatrao… — Pension and Retirement Benefits | Bombay HC (2011)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT

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AURANGABAD

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APPELLATE SIDE, CIVIL JURISDICTION

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WRIT PETITION NO.: 3828 OF 1996

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***

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Maharashtra State Road Transport Corporation, through its Divisional Controller, Nanded.

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... PETITIONER.

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Versus

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Venkatesh Ganpatrao Hingole, Age: Major, Occ. Ex-Conductor, R/o Degloor, Dist. Nanded. [Dead/ through L.Rs.]

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i) Rupabai Wd/o Vyankat Hingole, Age: 60 yrs., Occ.: Nil. ii) Sapana D/o Vyankatesh Hingole, Age: 30 yrs., Occu.: Nil. iii) Mahesh S/o Venkatesh Hingole, Age : 40 yrs., Occ.: Labour, All R/o Degloor, Dist. Nanded. ... RESPONDENTS

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***

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Mr. M. K. Goyanka, Advocate for the Petitioner.
Mr. Pawan Pawar, Advocate for Respondents.

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***

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CORAM: B. P. DHARMADHIKARI, J.
DATED:- 26th APRIL, 2011.

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ORAL JUDGMENT:

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1.By this petition, filed under Articles 226 and
227 of Constitution of India, Petitioner/ employer
hasquestionedtheconcurrentgrantof

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reinstatement to deceased Venkatesh. Venkatesh was

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dismissed for misconduct under clauses 7 (c), 12
(b) and 22 of Schedule-A of Discipline and Appeal
Rules, after giving him a charge sheet dated 3rd
March, 1992. Said dismissal dated 21st November,
1992 was then questioned by him before Labour
Court, Jalna in Complaint (ULP) No.105 of 1992
under section 28 (1) read with Item 1, clauses (a),
(b), (d), (f) and (g) of Schedule-IV of Maharashtra
Recognition of Trade Unions and Prevention of
Unfair Labour Practice Act, 1971 (hereinafter
referred to as 1971 Act). That complaint was
allowed on 25th July, 1995 by granting him relief
of reinstatement with continuity and 75% back-
wages. Petitioner questioned this judgment of
Labour Court in Revision No. 64 of 1995 under
section 44 of 1971 Act before Industrial Court at
Jalna. Vide order dated 4th June, 1996 Industrial
Court partly allowed that revision. It maintained
relief of reinstatement with continuity but then
forfeited fifty per cent of the back wages. Thus,
deceased Venkatesh was directed to be reinstated
with continuity and fifty per cent back wages.

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2.Petitioners then approached this Court in the
matter and on 19th August, 1996, while issuing rule
in the matter, interim relief was refused. Because

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of this refusal, petitioners reinstated deceased
Venkatesh and he was again dismissed in other
misconduct after departmental enquiry on 16th
April, 1998. That dismissal was not challenged by
him during pendency of present petition and he
expired on 5th February, 2009. His legal heirs are
brought on record.

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3.I have heard Advocate Mr. Goyanka for the
petitioner/ corporation and Mr. Pawar for the
Respondents.

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4.Mr. Goyanka contends that having found
misconduct of grave and serious nature established,
the learned Member, Industrial Court could not have
granted relief of reinstatement. He further points
out the said finding of Industrial Court has not
been questioned before this Court by deceased
Venkatesh and it has attained finality. He also
invites attention to observations of Labour Court
to urge that past service record of deceased
Venkesh was far from satisfactory. He, therefore,
seeks dismissal of ULP complaint filed by deceased
Venkatesh.

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5.Mr. Pawar, on the other hand, states that past
service record was not produced before the Labour
Court and its reference in Inquiry report is found

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to be vague to deserve any credence. He further
contends that the Industrial Court has exonerated
deceased from misconduct falling under clause 22 of

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Discipline and Appeal Rules and hence his
implication under other two charges by itself was
found not sufficient to sustain the punishment.
According to learned counsel the bus had started
hardly 1.5 to 2.0 Km. back and the deceased was in
the process of issuing tickets to a group of 16
passengers at the time of checking. In this
situation, the finding that punishment is
shockingly disproportionate cannot be labeled as
erroneous. He, therefore, prays for dismissal of
writ petition. According to him, later dismissal

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of deceased Venkatesh or then absence of any
challenge thereto are not relevant in the present
matter.

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6.The dismissal is after holding departmental
inquiry. A perusal of judgment delivered by Labour
Court reveals that Labour Court found conclusions

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drawn by Inquiry Officer perverse and it has,
therefore, interfered in the matter. In revision,
the Industrial Court has reversed partly said
finding. It found that the material on record was
sufficient to sustain implication of deceased for

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misconduct falling under clause 7(c) and 12(b) of
Discipline and Appeal Procedure. It further found
that misconduct under clause 22 was not
established. This finding of Industrial Court has
attained finality and has not been assailed by
deceased. Moment misconduct falling under clause
7(c) or 12(b) of Schedule-A of Discipline and
Appeal Procedure is shown to be established it is
apparent that punishment of dismissal from service
can be inflicted for it. The misconduct under
clause 7(c) is of recovering fair amount from
passengers and of failure to issue tickets to them.
Misconduct under clause 12 (b) is a fraud,
dishonesty and misappropriation in connection with
business or property of Maharashtra State Road
Transport Corporation. These misconducts are,
therefore, grave and it cannot be said that
punishment of dismissal for the same is shockingly
disproportionate. The concept of shockingly
disproportionatepunishmentorthenof

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consideration of past service record forms part of
unfair labour practice falling under clause "g" of
Schedule-IV, Item 1. But, then, it envisages
misconduct of minor or technical character. The
issue is squarely covered by judgment of Honourable

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Apex Court in the case of "Colour Chem Limited V/s
A. L. Alaspurkar and others" reported in AIR 1998

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S.C. 948.

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7.The learned Member of Industrial Court,
thereafter, after having reached a conclusion that
the misconduct of grave and serious nature has been
established, could not have interfered with the
quantum of punishment only because charge under
clause 22 was of vague nature. The charge under
clause 22 is of breach of any administrative
orders. The administrative order relevant here is
rule of "issue and start". It cannot be presumed
that a person like deceased, who was working as
conductor, was not aware of that rule. No bus can
be checked by inspecting squad if rule of issue and
start is not followed. Here, admittedly that rule
is also breached.

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8.In this view of the matter, it is apparent
that finding reached by Industrial Court that
punishment is shockingly disproportionate is
unsustainable and is liable to be quashed and set
aside.

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9.However, in present situation, when the

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deceased was already reinstated after rejection of
interim orders by this Court sometime in 1996 and

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has worked till April, 1998 and earned his salary,
it is apparent that, that work and salary earned by
him needs to be protected. Therefore, though the
order of Industrial Court dated 4th June, 1996 is
hereby quashed and set aside and judgment of Labour
Court dated 25th July, 1995 is also quashed and set
aside and Complaint (ULP) No.105 of 1992 filed by
deceased is hereby rejected, still the work done by
him, after his reinstatement in 1996 till his
second termination dated 16th April, 1998 is
protected. Petitioner shall not effect any

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recovery for that work or on that count.

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10.Rule is made absolute accordingly. No costs.

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[B.P.DHARMADHIKARI, J.]

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Dated:26/04/2011.
ans/3828

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WRIT PETITION NO.: 3828 OF 1996

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Date of decision: 26th APRIL, 2011.

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For approval and signature

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THE HONOURABLE SHRI JUSTICE
B. P. DHARMADHIKARI.

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Whether Reporters of local papers...Yes
may be allowed to see the judgment?

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To be referred to the Reporter or not?... No
Whether Their Lordships wish to see ... No
fair copy of the judgment?

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Whether this case involves a substantial... No
question of law as to the interpretation
of the Constitution of India, 1950, or any
order made thereunder?

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Whether it is to be circulated to the... No
Civil Judges?

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Whether the case involves an important... No
question of law and whether a copy of
the judgment should be sent to Nagpur,
Goa and Bombay offices?

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[G. F. ANSARI]

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PRIVATE SECRETARY TO THE
 HONOURABLE JUDGE

M.S.R.T.C.Nanded. v. Venkatesh Ganpatrao Hingole.

Case brief

What is this about?

What did the court decide?

M.S.R.T.C.Nanded. v. Venkatesh Ganpatrao Hingole.

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Cases cited

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